MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  9 December 1999    
	DOCKET NUMBER:   AR1999021696

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Thomas D. Howard		Member	
	Mr. James P. Steuve		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his bad conduct discharge (BCD) be upgraded to a fully honorable discharge (HD). 

APPLICANT STATES:  In effect, that he believes that his misconduct was directly related to his experiences in the Republic of Vietnam (RVN) and heroin use.  In support of his request, he submits a letter written in his own behalf, and letters dated 28 December 1998 and 4 January 1999 that were written by civilian medical personnel.  He also submits personnel records and medical documents that were copied from his Official Military Personnel File (OMPF).

EVIDENCE OF RECORD:  The applicant's military records show:

On 1 March 1971, he enlisted in the Regular Army for a period of 
2 years.  He served in military occupational specialty (MOS) 05B (Radio Operator) and MOS 31B (Fixed Cryptographic Equipment Repairman).  On 
5 March 1971, he extended his period of enlistment for a period of 1 year.  He served in the RVN from 21 November 1971-18 October 1972.  

On 12 August 1971, 27 March 1972 and on 26 April 1972, while assigned in the RVN, the applicant accepted nonjudicial punishment under the provisions of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from his unit from 9-12 August 1971, for breaking curfew restriction, for disobeying a lawful order on two separate occasions, and for failure to go to his appointed place of duty at the prescribed time.  His punishments included reduction from pay grade E-3 to pay grade E-2 (suspended), forfeiture of pay and extra duty. 

On 12 August 1972, the applicant was convicted by a special court-martial for unlawfully impersonating a military policeman, for communicating a threat with intent to obtain something of value, for stealing United States Military Payment Certificates from two members of the US Army on 5 May 1972, for being AWOL from 14-20 May 1972, and for escaping from lawful custody on 5 June 1972.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, confinement at hard labor for 2 months (suspended for 6 months or until time of separation) and to be discharged with a BCD.

Special Court Martial Order Number 37, dated 18 September 1972, shows that the applicant’s sentence to confinement was vacated and the unexecuted portion of the sentence was ordered to be duly executed.  The applicant was to be confined at the US Army RVN Installation Stockade or elsewhere as competent authority directed.

The applicant’s DA Form 20 (Enlisted Qualification Record) shows that on 
19 December 1972, he was arrested while on an authorized pass and charged with armed robbery.  No further details concerning the robbery are contained in his OMPF.

On 25 April 1973, the United States Court of Military Review affirmed the finding, approved the sentence and set aside the unserved portion of the 2 months confinement at hard labor.

On 17 September 1973, the United States Court of Military Appeals denied the applicant’s petition for a further grant of a review.  

Special Orders number 9, dated 9 January 1974, shows that the applicant was separated in abstentia on 9 January 1974, under the provisions of chapter 11, Army Regulation 635-200 for court-martial (other than desertion) with a BCD.  He had served 1 year, 4 months and 8 days of active military service.  He also had 
546 days lost time due to being AWOL and in confinement.

The statements that were submitted by the applicant show that he was diagnosed to suffer from posttraumatic stress disorder (PTSD).  The documents also stated that he might have suffered from PTSD during his early experiences in Washington, DC, prior to his military experiences.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify clemency a military record must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.	The Board has taken into consideration the applicant’s contention that the 
offenses that he committed were as a result of drug use.  If in fact, the applicant violated the Army's policy not to posses or use illegal drugs, he compromised the trust and confidence placed in him as soldier.  The applicant, as a soldier, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked his military career and diminished the quality of service below that meriting an honorable discharge.  

4.  Further, the Board concluded that the nature of the applicant’s offenses were serious because they were committed while he was assigned to a combat zone of operations.

5.  Additionally, there is no probative evidence in the applicant’s record and he has submitted none that shows that he suffered from PTSD while he was in the military.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

JHL_____  TDH____  JPS_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021696	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19740109	
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	A60.000	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.000	
2.		
3.		
4.		
5.		
6.